After Senators John Barrasso (R-WY) and Joe Manchin (I-WV) recently introduced the Permitting Reform Act to streamline permitting processes, Congressman Bruce Westerman (R-AR) is leading the charge in the House. Rep. Westerman’s draft bill would modernize the National Environmental Policy Act (NEPA), which has long been a hindrance to economic development and environmental progress.

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NEPA requires federal agencies to conduct environmental assessments (EA) or environmental impact statements (EIS)—which are more stringent—for any project that is deemed to be a major federal action. While environmental protection is important, NEPA was signed into law before the Clean Air Act, Clean Water Act, and other state environmental statutes, which has created an onerous, duplicative, and complicated permitting process. 

These inefficiencies impede all energy, infrastructure, and many conservation projects which adversely affects energy supplies, and in turn, raises costs for consumers. Permitting delays are also hampering the country’s ability to build innovative energy projects and infrastructure, which harms America’s economic competitiveness. 

The Westerman permitting bill would address several of these challenges by making structural changes to NEPA. One of the most important provisions of the bill is limiting the statute of limitations for NEPA lawsuits to 120 days after a federal agency issues a final decision. Currently, parties can bring forth civil litigation up to six years after an agency files a record of decision. 

Importantly, such lawsuits rarely change the decisions of federal agencies. An analysis from The Breakthrough Institute (BTI) found that agencies won about 80 percent of their cases between 2011 and 2022. Excessive litigation rarely addresses legitimate environmental concerns and results in costly, time-consuming delays.  

Narrowing the statute of limitations to 120 days would provide concerned parties with enough time to raise legitimate concerns while giving developers regulatory certainty. 

The bill directs courts to reach a final ruling within 180 days while limiting who can file civil lawsuits to parties that participated in administrative proceedings and submitted public comments and whose litigation is related to said comments. While a step in the right direction, this bill could go further by limiting standing to parties in the communities affected by the project. The same BTI study found that NGOs instigated 72 percent of NEPA litigation and were the sole plaintiffs more than half the time. Just 10 national organizations were responsible for 35 percent of these cases.  

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The Westerman permitting bill also expands the list of categorical exclusions—which do not require an EA or EIS—to include projects that receive federal grants. Through bills such as the Infrastructure Investment and Jobs Act, the federal government is allocating billions of dollars toward next-generation demonstration projects. Despite the economic and environmental benefits that they would bring, onerous permitting processes can delay or cancel these projects. Streamlining environmental reviews would stretch taxpayer dollars further, increase the opportunity to deploy these technologies at scale, and increase America’s economic competitiveness by having the U.S. lead on emerging, innovative technologies. 

Additionally, Westerman’s bill would narrow the scope of the federal government by directing agencies in their NEPA analysis to examine the effects of an action that only those that are within the federal government’s control and jurisdiction. Recent rulemakings have directed federal agencies to consider impacts far outside the federal purview of a single project, such as global climate impacts and politically-charged social and cultural policy. 

The bill also tailors the definition of “reasonably foreseeable environmental impacts,” which agencies are forced to consider, to those that are likely to occur in the area directly affected by the project, directly under the control or jurisdiction of the agency, and those that have a reasonably close causal relationship between a change in the environment and the major federal action. This would direct agencies to further narrow their focus on the direct impacts of an action, rather than considering effects outside an agency’s control or difficult to quantify. 

From supplying affordable, reliable energy to maintaining healthy forests, NEPA delays increase project timelines and costs and put much of the decision-making process in the hands of national activists rather than local communities. Representative Westerman’s bill is a welcome step in fixing a broken permitting process, which will benefit America’s environment and economy.

The views and opinions expressed are those of the author’s and do not necessarily reflect the official policy or position of C3.